HKSAR v. KONG YIU KAM AND ANOTHER

CACC 41/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 41 OF 1999

(ON APPEAL FROM HCCC 227/1998)

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. Both applicants were initially charged with murder. Particulars of the charge were that on 21st April 1998 they both together with other persons unknown murdered Chan Wing-lam who we will refer to as the deceased.

2. After a trial in the High Court before Mr. Justice Nguyen and a jury they were both found guilty of manslaughter. It is of significance to add that at a pre-trial review A1 indicated his willingness to plead guilty to manslaughter. The prosecution however was not prepared to accept this plea. A1 was sentenced to 6 years imprisonment and A2 to 7 years. A2 sought leave to appeal against both his conviction and sentence and A1 simply seeks leave to appeal against his sentence. A2 has withdrawn his application to appeal against his conviction and thus it has been dismissed.

3. The facts of the case were relatively simple. The deceased and both applicants were drug addicts.

4. It appears to have been common ground that on the day preceding the incident A1 was at Tak Wah Garden which was where the offence took place. It is apparently a place where drug addicts congregate and no doubt buy and sell drugs.

5. There was a dispute between A1 and the deceased over the quality of some dangerous drugs. At the conclusion of the dispute it would appear that the deceased assaulted A1 with his fists.

6. The prosecution case was the next day A1, A2 and a group of men entered the garden where the deceased was sitting on a seat. All the men set upon him and beat him with their fists. A1's role was to hold the deceased's arms while the other men beat him. After some time the deceased fell to the ground. The men continued to kick the deceased on the head while he was on the ground. The deceased was taken to hospital where an operation was performed on him. He died the following evening.

7. The cause of his death was brain damage which had been occasioned by the kicks which had been administered to his head.

8. A1 gave himself up to the police prior to the deceased's death. He made a cautioned statement to the police in which he admitted participating in the attack. He also gave evidence at his trial that there had been no pre-arranged revenge plan to attack the deceased. It had never been his intention either to kill the deceased or to occasion him serious bodily harm.

9. The only evidence against A2 was a cautioned statement. In that statement he admitted participation in the attack.

10. The Judge gave detailed directions to the jury on both self defence and provocation.

11. It was apparent form the juries verdict that they convicted both men of manslaughter on the basis of lack of the requisite intent for murder.

12. When commenting upon the Judge's summing up to the jury it is necessary to observe that it was less helpful to the jury than it should have been. The Judge appears to have simply extracted his directions from his notes without assembling the material in a readily comprehensible form. It is not normally helpful to summarize examination-in-chief and cross-examination without putting it together as an integral whole. In addition to this it is helpful if the evidence can be collated to form a coherent sequence of events.

13. It is also desirable not to be unduly repetitious. Having said this it was the case that the directions were sufficient to enable the jury to undertake their deliberations.

14. Both applicants are represented by Mr. Petrus Chan on these applications for leave to appeal against the sentences imposed. The single ground of appeal in each case is similar, namely that the Judge adopted too high a starting point when he selected this at 9 years. He calls in aid the fact that the applicants had not intended to kill the deceased. It should perhaps be added that had the applicants had this intention they would have been convicted of murder.

15. As has been said it was an ugly revenge attack of a cowardly nature. Perhaps the most significant aspect to the attack was that the men continued kicking the deceased on the head after he was lying on the ground.

16. Mr. Chan has cited to us the cases of R. v. Ko Kam-hung [1991] 2 HKLR 433 and the R. v. Kan Wah-cheung [1991] 1 HKLR 595 in support of the proposition that there should be some internal consistency of sentence in manslaughter cases and that in general terms sentences in the region of 6 to 8 years were appropriate for gang revenge attacks depending upon the surrounding circumstances. The present case is in our opinion at the upper end of the range having regard to the continued nature of the attack. We do think that a sensible distinction can be drawn between this attack and an attack with knives.

17. We accept that a starting point of 9 years imprisonment was on the high side. However it is noted that A2 received an unduly generous discount for his health problems. It is also the case that A1 got the full discount for his willingness to plea guilty to manslaughter and ended up with a sentence of 6 years.

18. After considerable thought and deliberation we are not persuaded that these sentences are sentences which can properly be interfered with.

19. Accordingly the applications are dismissed.